SPEECH 


OF 

MR. ^AMER, OF OHIO, 



ON THE 


KENTUCKY CONTESTED ELECTION 


DELIAERED IN THE 



' r 


HOUSE OF REPRESENTATIVES OF THE U. STATES, 


MAY 22, 1834. 


CITY OF WASHINGTON: 
PRINTED BY FRANCIS PRESTON BLAIR. 





M'-' 


i" '&•• "I 







^mirn 

■>''' ■ '*' ■ .'-■•«■'•. . . 


5 ‘-■"?-.«' 

fk^g. 


.tri| , . 





V 



i L 






SPEECH 

OF 

MR. HAMER, OF OHIO. 


In the House of Representatives May 22, 1834, on 

the following* resolution of the Committee of 

Elections: viz. 

Resolved^ That Thomas P. Moore, Esq. is en¬ 
titled to the seat in this House, to represent the 
5th Cong'ressional District of the State of Ken¬ 
tucky. 

And the following amendment submitted by Mr. 
Baitks, as follows: 

That all the legal votes which were received 
in Lancaster, Garrard county, whilst Moses Grant, 
Esq. acted as one of the judges, on the first morn¬ 
ing of the election, in August last, and those of 
a like character, given on the second day of the 
election in the casual absence of the Sheriff, 
ought to be estimated in ascertaining the result of 
the election.** 

Mr. HAMER rose and said: 

Mr. Speaker, before I proceed to submit my 
views of the question now pending before the 
House, I trust I shall be indulged in making a sin¬ 
gle remark, in reference to myself. 

I concur with the gentleman from New York, 
(Mr. Vanderpoel,) who addressed the House the 
other day, and who is a member of the Commit- 
mittee of Elections. He informed us, that it was 
not by his desire, that he had been placed on that 
committee. So of myself, sir. Although I have 
never sought to avoid any responsibility, that de¬ 
volved upon me, in the several stations I have had 
the honor to occupy, still I have never courted it 
when it did not belong to me. With a knowledge 
of the business that must come before the commit¬ 
tee of elections, I should have been very unwise, 
at the commencement of this session, to have de¬ 
sired a place among its members. But, sir, I was 
placed upon it, by the presiding officer of tliis 
House, and I have endeavored to discharge my 
duty faithfully. It was the fortune—good or bad 
—of the gentleman from Pennsylvania, (Mr. 
Banks,) and myself, to be selected as a sub-com¬ 
mittee, to examine the immense mass of testimo¬ 
ny, consisting of some 1800 pages in manuscript, 
and making a large volume, now that it is in print, 
that had been taken by the respective claimants 
to a seat on this floor. Nearly five hundred votes 
were assailed as illegal. Some were said to be 
given by minors; others by aliens; others again, 
by persons who were not residents ofthecounly 
where they voted; and a variety of other disquali¬ 
fications were alleged to exist. 

In some instances;, three, four, or five witnesses 
were examined to|prove the illegality of a vote; 


and three or four depositions would be taken, to 
assail the credibility of one of these witnesses. In¬ 
deed, the case presented for our examination, al¬ 
most every question that can be imagined to ex¬ 
ist in a contested election. We labored upon it, 
as is known to a number of gentlemen, night and 
day, for many weeks, until my own health was se¬ 
riously impaired. Upon a large majority of the 
points presented to us, we agreed: upon some we 
differed. Having travelled through it, the majo¬ 
rity and the minority of the committee have each 
submitted the results of their examination to the 
House. From the fact of my having served upon 
the sub-committee, it is expected that my views 
of the question will be made known in this dis¬ 
cussion . 

One word more, sir, and I proceed. I hope it 
will be distinctly undei*stood, that in whatever 
terms I may feel myself impelled to speak of the 
arguments of gentlemen, I mean no personal dis¬ 
respect. I have no unkindness of feeling towards 
either of the claimants, or for any gentleman who 
has spoken in the progress of this discussion on 
either side of the question. It is not my habit to 
impugn the motives of others, or to give an un¬ 
charitable construction to their conduct; and pur¬ 
suing that course towards those who differ with 
me, should it be ray misfortune, either now or 
hereafter, to have my own motives assailed, or 
my conduct misrepresented, I trust I shall know , 
how to repel all such assaults with the spirit that 
becomes a freeman. 

The majority of the committee find themselves 
placed in a most singular condition. They 
charged by the minority with erroneous decisions, 
in a number of cases where votes have been strick¬ 
en from Mr. Letcher’s poll; and it is said by gen¬ 
tlemen, that if these cases had been correctly de¬ 
termined, Mr. L. would have had a majority of 
all the votes of the District, and would be entitled 
to the seat. On the other hand, Major Moore has 
laid a printed argument upon our tables, accom¬ 
panied by a list of some forty or fifty votes, which 
were retained by the majority for Mr. L. that he 
(Mr. M.) asserts should be stricken off; thereby 
making the majority for him much larger than it 
is nov/. 7 hus we are standing between two fires: 
both parties complain of our decisions. Under 
such circumstances, there is but one course for us 
to take; and so far as I am concerned, but one will 
be taken: it is to proceed directly forward, re¬ 
gardless of the consequences, be them what they 
may. 






4 


I agree sir, with the gentlemen who have pre¬ 
ceded me, that this is a question of deep impor¬ 
tance. It is important to the claimants, because 
it involves the right to a seat on this floor; it is im¬ 
portant to the People of the Fifth Congressional 
District—and, indeed, of the whole State of Ken¬ 
tucky, as affecting their representation in this 
branch of the government; and it is important to 
this House and to the American People; for the 
decision now made, will be looked to, as a beacon, 
for the guidance of those, who may have to de¬ 
termine similar cases in after times. It behooves 
us, therefore, to proceed with caution and delibe¬ 
ration; to weigh well every argument, that may 
be presented; and to so decide, as that vital princi¬ 
ple may be preserved inviolate, and substantial 
justice meted out to all concerned. 

To discuss this subject, in the manner best cal¬ 
culated to present its merits clearly and intelligi¬ 
bly to those who hear me, it becomes necessary to 
relieve it from some of the incumbrances that 
have been heaped upon it, by the gentlemen who 
have preceded me. It often happens that we 
mislead both ourselves and others, in discussing a 
question, by making false issues, and by incorpo¬ 
rating extraneous matters, that do not properly 
belong to the subject. These are so many false 
lights that lead us astray in the pursuit of truth. 
They should be extinguished; for their glare up¬ 
on our mental vision, has a direct tendency to ob¬ 
scure the object which they were designed to il¬ 
luminate. 

One prominent position has been taken by the 
minority of the committee, and by all the gentle¬ 
men who have spoken upon that side of the 
House, which I am bound to notice. They 
charge the majority with advancing the doctrine, 
that an individual having a minority of the votes 
in the Fifth District, is entitled to a seat on this 
floor. Sir, I deny this charge. The committee 
have advanced no such doctrine in their report; 
and not a single member of it has advocated such 
a principle. For myself, I wholly repudiate it. 
We have not only not contended for any such prin¬ 
ciple; but we have said, expressly, that after a 
full and thorough purgation of the polls—count¬ 
ing in as legal, all the votes given at Lancaster on 
Monday, whilst Esquire Grant was on the bench, 
and all given during the absence of the Sheriff on 
Tuesday, still there was a clear majority of 
the individual votes in favor of Major Moore. 
^Ve contend for the doctrine that a majority 
shall rule, aa strenuously as the gentlemen do. 
Indeed, both the candidates maintained their 
claims before us upon this principle. It was the 
main question to be determined by the commit¬ 
tee. Each of the claimants contended, that after 
striking off all illegal, individual votes, he had a 
majority (\f what remained. The legality of the 
votes given at Lancaster, on Monday and Tues¬ 
day, was a question upon which the committee 
felt bound to give an opinion, because it was one 
that would probably come before the House. 
But, independently of that question, they found a 
majority of votes for Major Moore. 

Why, then, are we charged with maintaining 
that a minority is to prevail over a majority? I 
ask the gentlemen, whether, in ascribing to us 


such sentiments, they treat us with the fairness to 
which we are justly entitled? 

Again, sir: A disinterested listener, who was 
unacquainted with the merits of this controversy, 
would suppose, from the speeches of gentlemen, 
that we w’ere about to overthrow the dearest 
rights that belong to the People of this great Re¬ 
public. One gentleman (Mr. Marshall) declares 
that the sense of the country will put down our 
doctrine; and he asks, most triumphantly, wheth¬ 
er this is a principle by which any gentleman is 
willing to stand in this country? Why, sir, this 
would all be very appropriate, if the committee 
had attempted to sustain the proposition ascribed 
to them; but I have already stated, that they do 
not. I'heir report rests upon no such sandy 
foundation. It stands upon the great fundamen¬ 
tal principle, that the majority shall rule. It re¬ 
cognises the rights of the People, as secured by 
their own institutions. And I tell the gentleman, 
in answer to his question, that by this principle, 
and these institutions, I am willing to take my 
stand; and to risk, in so doing, what little repu¬ 
tation I now possess, or may hereafter live to ac¬ 
quire. ' 

The conduct of Alfred Hocker, the Sheriff of 
Lincoln, has been alluded to, by all the gentlemen 
who have addressed the House upon the other 
side. It has been called “disgraceful;” the term 

hocus pocus** wsis applied to it by the gentle¬ 
man from Georgia (Mr. Clayton.) His conduct, 
right or wrong, has nothing to do with the ques¬ 
tion now before us. It is the conduct of Thomas 
Kennedy, the Sheriff of Garrard, that is under 
consideration. 

No one has attempted to justify the act of Mr. 
Hocker, in withholding the poll-book of Lincoln, 
as a legal act. The committee have expressly 
condemned it. Major Moore, in whose favor it 
operated, does not pretend to justify it as legal. 
He claims nothing under it. But the act itself, 
and the motives of the individual, are two distinct 
considerations; and this man, whose name has been 
loaded with maledictions, is proved to possess a 
most excellent character—to be an upright, ho¬ 
nest, and patriotic citizen. His motives were, no 
doubt, good, and his acts resulted from what is 
supposed to be a wrong construction of the law. 
Let us see if there is nothing to palliate his offence. 

The law provides that the Sheriffs shall meet 
within fifteen days after the election, and by a 
faithful comparison and addition of the votes given 
in the several counties, ascertain who is elected, 
and make out his certificate. Mr. Hocker believ¬ 
ed that the Sheriffs, when so met, composed a 
board, having the right to decide upon the validi¬ 
ty of a poll-book; and if the election, in any one 
precinct, had been held in open violation of law, 
that they had a right to reject the votes so given. 
In this opinion he may have been wrong; yet the 
language of the law affords a plausible excuse for 
the sentiments he avowed. 

Finding that the Sheriffs would not enter into 
such an examination as he desired—believing that 
the vote s about to be counted ought not to be con¬ 
sidered in a faithful comparison and addition —he 
retired with his poll-book, leaving the question to 




5 


be decided by the constituted authorities of the 
country. 

It has been said, in tlie course of this debate, 
that the certificate of the three Sherifis proves no¬ 
thing; that, not being made pursuant to the law, 
it is void; that Major Moore claimed a seat here 
upon such a certificate; that Mr. Letcher ought 
to have had the seat, upon the copies of the poll- 
books which he presented; and, .says the gQiille- 
man from Georgia, (Mr. Clayton,) the ground is 
now changed in lavor of the former; and it is con¬ 
tended that a minority of votes shall entitle him to 
a seat here! The validity of such a certificate is 
not now a legitimate subject of discussion. It has 
no connexion whatever with the point before the 
House; but I beg leave to set the gentleman right, 
with regard to the respective positions of the two 
claimants^tliroughout this whole contest. 

At the commencement of the session, there was 
nothing in dispute but the right to a temporary 
seat in the House. Each party claimed it; one 
upon the copies of the poll books, and the otlier, 
upon a certificate signed by three SherifiTs of the 
Congressional District—the law requiring all the 
Sheriffs to sign it. Neither of them had th^ evi¬ 
dence, strictly speaking, which the law required. 
Neither of them contended for a permanent seat 
here, upon such evidence. The right to that, 
they both admitted, would depend upon a majori¬ 
ty of the votes given in the District, after a tho¬ 
rough purgation of the polls. Precisely that doc¬ 
trine have they both contended for, ever since. 
In all their communications with the com.mittee, 
they rest their claims upon this principle; and 
each one insists, that he has such a majority.— 
Their claims to a temporary seat, we all know, 
were waived, and the whole mutter referred to 
the committee. How, then, has the ground been 
changed.'' Why does any gentleman indulge him¬ 
self in throwing out reflections upon one candi¬ 
date, and not upon the other? I deny, sir, that 
the ground has been changed. The right to a 
permanent seat is still claimed, by both candidates?, 
as it has been from the first, by virtue of a majori¬ 
ty of the individual votes. Who has this majori¬ 
ty, is the question now to be determined by the 
House. 

Here, I cannot but notice a remark that fell 
from the gentleman from Georgia, (Mr. Clayton,) 
who is not a member of the committee. He de¬ 
clared, that he believed this case would be decid¬ 
ed wrong! For my own part, I entertain no such 
fears. I will not anticipate an erroneous decision, 
by this House, of any question. To the appre¬ 
hensions of gentlemen, that party influence will 
be brought to bear upon the minds of honorable 
members, I will not speak in reply. H should be 
presumed, I think, that all will act from pure mo¬ 
tives, and sound and honest principles. 

Various cases have been presented, by way of 
argument and illustration, from the election laws 
of Georgia, Pennsylvania, and Kentucky. 1 do 
not feel bound to answer the inquiries they pro¬ 
pose, because they have no direct bearing upon 
what is believed to be the true issue before the 
House. They may serve to amuse and instruct 
us, upon other points; but it is most important that 


we consider the question upon which we have to 
decide. 

The gentleman from Kentucky (Mr. Hardin,) 
who last addressed the House, expressed his sur¬ 
prise and regret, that the committee had not de- 
cided two very important questions, as he con¬ 
ceived them to be. The first was, whether the 
Sheriff could, under any circumstances, open the 
polls before 10 o’clock. 'I he other was, whether 
the certificate, made out by the three Sheriffs, 
and transmitted to this House by the executive; 
or, copies of the poll books, furnished the best 
evidence of the number «f votes received by the 
candidates. Now, the answer to all this is easily 
given. The committee did not feel themselves 
called upon, to decide either of the points named; 
because they arrived at a final termination of the 
whole case, without such decision. Take either 
the poll books, or the certificate, as evidence of 
the number of votes received, andMaj. Moore hasa 
majority. Count all the voles taken before 10 o’¬ 
clock, at Lancaster, or exclude them; and in either 
event, he has still a majority. Although these 
questions were presented to the committee, as a 
great many points are presented in argument to a 
Court or jury, by counsel; still, they no more con¬ 
sidered themselves obliged to decide upon them, 
than the Court feels bound to adjudicate upon all 
the points raised by the advocates, during the trial. 
’I'hey find one or two principal points, upon which 
the whole case turns, and decide them; leaving 
the others for some future occasion, when necessity 
may require a solemn judgment upon them. 

That gentleman presented another very grave 
inquiry. It was—“what is a day?” As the con¬ 
stitution of Kentucky gives a day to the electors 
for exercising their right of suffrage, he contend¬ 
ed that the Legislature could not limit them in the 
exercise of the right to certain hours of the day. 
Any such attempt, he thinks, would be unwar¬ 
ranted; any such luw would be unconstitutional. 
I am not disposed to enter the arena with the gen¬ 
tleman, to discuss so serious a question. If he 
chooses to nullify the law, let him do so. If he 
determines constitutional questions by a literal ap¬ 
plication of the language employed in the charter, 
then, his criterion is different from the one which 
I have been accustomed to regard as the truer and 
safer rule. To carry out the principle, would in¬ 
volve us in great difficulties. In almost every 
American constitution, there is a clause, which de¬ 
clares, substantially, that justice shall be adminis¬ 
tered, without sale, denial, or delay. Suppose 
you owe me a sum of money, but fail to pay it on 
the day the debt becomes due. I am entitled to 
justice without delay. It is a constitutional right. 
The law ought to provide, nccording to the prin¬ 
ciples of the gentleman, for an immediate arrest, 
trial, judgment, and sale of property, orperson, or 
imprisonment of the latter at least. There must 
be no security taken for the defendant’s appear¬ 
ance at Court—no time allowed to prepare for 
trial—no stay of execution. These would occa¬ 
sion delay; and a law, allowing the debtor such 
privileges, would be unconstitutional! Surely the 
gentleman does not contend for a mode of inter¬ 
pretation, that would lead to such extravagant con¬ 
sequences ? 1 apprehend, sir, that the true rule 







6 


is, to give all these clauses a reasonable construction; 
one that is consistent with the general principles 
and scope of the instrument, and with the manifest 
intention of those who framed it. 

Whilst upon this subject, I will take occasion to 
say, that to my mind, there is a striking incon 
gruityin the doctrines of some gentlemen. At 
one time they adhere to the very words of the con¬ 
stitution and laws of Kentucky. They are strict 
constructionists of the straightest sect. For exam¬ 
ple; when the constitution says, that the election 
shall be held on the first Monday in August, and 
the law says, that the Sheriff shall open the polls 
by 10 o’clock, and keep them open, till at least one 
hour before sunset; why, here it is contended 
that the voters are entitled to the whole day, from 
midnight of the previous evening, until midnight 
of the first Monday in August; and that the She¬ 
riff may open the polls immediately after mid¬ 
night, and keep them open during the whole 
twenty-four hours. In this case, we must “stick 
to the letter."” But, when the law says, that all 
votes shall be given in the j)resence of the Judges 
andSheriff —then we must turn latitudinariaas of 
the ultra school. In this case, gentlemen tell us, 
that the law does not mean what it says, at all. 
We must give it a liberal construction. I'he Sheriff 
may absent himself from the county entirely; and 
yet the votes, given in his absence, will be valid 
in law. Perhaps gentlemen can reconcile these 
two modes of construction, as consistent with each 
other; but I confess my utter inability to do so. 

Another gentleman from Kentucky, (Mr. Mar¬ 
shall,) has told us, that among all the precedents 
referred to, no case can be found where this 
House has, under circumstances like the present, 
stricken off the whole, or a part of the votes given 
in a township, parish, or precinct, on account of 
the illegal manner of conducting the election; and 
then given the seat to a candidate, who had a mi¬ 
nority of votes, by retaining such poll book; but, 
a majority, by its rejection. Without stopping 
now to say how far precedent should control us, 
in deciding a case of such marked pccuharites, I 
will inquire of the gentleman, whether this House 
has not by former decisions established/Ae princi¬ 
ple, that such poll books are to be rejected; that 
where the law has been openly violated and disre¬ 
garded in conducting the election—the votes given 
shall not be counted in the final addition? That 
such decisions have been made, and such a prin¬ 
ciple established, will scarcely be denied. Well, 
sir, it is for the principle we contend; by that we 
should be governed. If the constitution and the 
law, as well as the former judgments of this 
House, demand the rejection of these votes, we 
are not to inquire for the consequences to a parti 
cular individual; whether it will put him in, or out 
of a seat. Apply the principle to the facts of the 
case—let it cut off whomsoever it may. 

The gentleman from Georgia (Mr. Clayton) has 
informed us, that the very existence of represen- 
tive government is menaced by the report of the 
committee; and that he firmly believes this case 
will be decided WTong. From what premises 
does the gentleman draw his conclusions? How 
has he ascertained which side is right, and which 
wrong. How has he learned which of these 


candidates has a majority of the individual votes 
given in the fifth District? Has he made a thorough 
purgation of the polish Has he, in one short week, 
the time we have had the printed documents upon 
our tables—examined the testimony, and decided 
for himself, upon all the questions involved in the 
contest? I apprehend he will not say he has! If 
the gentleman undertakes to pronounce one 
side right, and the other w-rong, without this 
searching examination, is he not in danger of fall¬ 
ing into fatal mistakes? Sir, he kindly admonished 
the House against allowing party feelings to enter 
into the decision of this question; but if he permits 
himself in advance, to pronounce one side right, 
and the other wrong, is he not in danger of the 
same pernicious influence, against which he so 
earnestly warns others? I do not believe that 
honorable gentlemen have formed their opinions, 
and steeled their understandings against all argu¬ 
ment upon this subject. If so, it would be in 
vain for me to stand up here, .and submit my 
views, for their consideration. I might as well at¬ 
tempt to struggle with the whirlwind. No, sir, 
the gentlemen are mistaken with regard to the 
character of our report. It does not, nor do the 
principles we advocate, menace the existence of 
representative government. It does not, nor do 
we, contend for the doctrine, that a minority shall 
govern a majority. The report of the committee 
is based upon the broad principles of inflexible 
truth, which, sooner or later, will bear down all 
opposition. Our report is shielded and sustained 
by the law's and the constitution of the country. 
It embodies principles that will bear the test of 
human scrutiny, apply it w'hensoever and where¬ 
soever you may. 

Mr. Speaker, there has been a great deal said, 
in the course of this discussion, about the inaliena¬ 
ble rights of voters, and the inherent right of suf¬ 
frage. These rights are neither inherent, nor are 
they inalienable, as was most conclusively shown 
by the gentleman from Georgia, (Mr. Jones,) 
who is a member of the committee. An inherent 
right of suffrage does not exist; it never did exist. 
And I am surprised to hear gentlemen of great 
ability, who have been long in public life, talk of 
an inherent right to vote. They have not consid¬ 
ered this subject with their usual care, or they 
would not indulge in the use of such terms, nor 
would they attempt to derive arguments from a 
proposition so wholly untenable. The right of 
suffrage is not inherent. It is derived from the 
social compact, and did not exist anterior to it. 
It is not inalienable, for it may be forfeited by 
those who possess it, in various modes, pointed 
out in the institutions of the several States of this 
Union. 

What is the right of suffrage? It is a right 
which I have to bind you. I elect an individual 
whose acts are obligatory upon you, within the 
sphere assigned him, no matter whether he is your 
choice or not. Do I possess this right in a state of 
nature, independently of the organic laws under 
which we live? Certainly not. If the right were 
inherent, all men would possess it. Aliens, fe¬ 
males, and minors would possess it; negroes and 
mulattoes would also claim it. But we all know 
that such is not the fact. Certain classes of soci- 





7 


ety are every where excluded, by the constitution 
and laws. By the way, sir, while upon this 
point, I will take occasion to avow the opinion, 
that a certain portion of the ladies ought to be 
allowed this right. Man, however, being the 
“stronger vessel,” possessing the power, physi¬ 
cal and numerical, has deprived them of this pri¬ 
vilege, in every State of the Union. 

In a state of nature, every man is a sovereign. 
He is the sole regulator of his own actions. No 
man can bind him: no one has a right to interfere 
with him. But when he enters into society, he 
surrenders a portion of his natural rights, and sub¬ 
mits himself, in a certain degree, to the control of 
others. The manner in which such control must 
be exercised, is pointed out with precision, in 
the constitution and the laws; and to be effective, 
it must conform^ in every important particular^ to 
the rules which are thus prescribed. If you at¬ 
tempt to exercise it in any other mode, your acts 
are void and impose no obligation whatever. This 
proposition is perfectly indisputable: it is as true 
as Revelation itself. 

One gentleman (Mr. Marshall) has informed us, 
that it is sufficient upon the present occasion, to 
advert to the constitution of Kentucky; that it 
alone furnishes a sufficient rule to guide this 
House in its determination. No proposition, in 
my opinion, could be more erroneous. We must 
first turn to the constitution of the United States; 
we may then examine the constitution of Ken¬ 
tucky, and lastly, explore the laws of that com¬ 
monwealth. From these three sources we can- 
obtain the rules, by which we should be governed. 
By the first, we are empowered to judge of the 
elections and qualifications of our own members, 
lly the second and third, the qualifications of vo¬ 
ters, and the time, place, and manner of holding 
elections, are particularly pointed out. Under 
the constitution of Kentucky, alone, no election 
could be held. The gentleman stated a case, in 
which he supposed the People of a district to 
meet, and in some way to manifest their choice, 
(without any law) for a particular person, as a re¬ 
presentative in this body; that individual arrives 
here with proof, by affidavits, or otherwise, of 
such choice, and demands his seat—and the gen¬ 
tleman declares it to be his opinion, that we would 
yield to the dtmand. But suppose that one-half, 
one-third, or even a less number of voters in that 
district should remonstrate against his right to a 
,place here? Would this House disregard their 
complaint? I tell the gentleman, that under no 
circumstances, as I conceive, could such a title be 
recognised here. Sir, the constitution ofthe Uni¬ 
ted States presents an insuperable objection to it. 
It declares (Art. 1st. Sec. 4th) that “ the times, 
places, and manner, of holding elections for Sena¬ 
tors and Representatives shall be prescribed in each 
Stale by the Legislature thereof.’’ This constitu¬ 
tion is the paramount law of the land; and no valid 
election can be held until the State Legislature 
has prescribed the rules by which it is to be go¬ 
verned. True, Congress have power to alter 
these rules; but it must be done by law. This 
House cannot do it. And until a law is passed by 
Congress upon the subject, the law of the State 
must prevail. It is in vain to insist that if the offi¬ 


cers appointed by the constituted authorities re' 
fuse to serve, any unauthorzed person may take 
their places; ffiatif the law requires thirty d; y’s no¬ 
tice, two days would be sufficient. It is in vain 
for gentlemen to say, in reply to the able argument 
of my friend from Georgia, who made this report, 
that he is adhering to the letter of the law, and dis¬ 
regarding its spirit; that this is an age of ^Hiberal 
principles.” Sir, these principles are truly libe¬ 
ral! They lead to the overthrow of all order; of 
all government. Instead of a government of live's, 
which is the pride and the boast of every Ameri¬ 
can, they offer us the most wild and lawless anar¬ 
chy. They would prostrate the valu d air. es¬ 
tablished institutions of the country, and frans- 
form our whole system into a “ Mobociiacy.” 

In this contest, two things are admitted, on all 
hands. There is no difference of opinion, with 
regard to them. The majority and minority arrive 
at the same conclusion; and in that conclusion, all 
the gentlemen who have addressed the House, 
concur without hesitation. The first is, that there 
has been an election; and the second, that a 
part of the votes’given are to be stricken from 
the polls. Upon these two points we all agree. 
But when we come to judge of the particular 
votes to be rejected, then we disagree. And in 
determining the various points which arise, it 
has been well remarked by a gentleman from 
Kentucky (Mr. Hardin) that this is a case sui 
generis^ that it ought to be decided by the consti¬ 
tution and laws of Kentucky, and the practice 
under them, and not by precedent. If to these 
he had added the constitution of the United 
States, I should have been satisfied with the rule 
he proposed. 

Notwithstanding the merits of the whole con- 
troversy are properly before the House, yet the 
votes more immediately under consideration, are 
those given at Lancaster, in the county of Garrard, 
whilst Moses V. Grant, Esq., was presiding as 
judge on Monday morning, and the votes given at 
the same place on Tuesday, in the absence of the 
Sheriff. Here I must be allowed to notice a posi¬ 
tion advanced in the minority report, and in the 
arguments of several gentlemen, who have dis¬ 
cussed this subject. It is said that the majority of 
the committee admit thtit the votes given on Mon¬ 
day morning, before ten o’clock, would have been 
good, if Mr. Grant had remained upon the bench 
throughout the election. Now, sir, the report of 
the committee contains no such admission, nor 
have I heard a single member of the committee 
advocate that doctrine. In the report, it is, in so 
many words, left undecided. It is remarked that 
the committee might not have rejected the votes, 
if Grant had continued to act, thus leaving it 
wholly undetermined. For my own part, I ex¬ 
pressly disclaim having made any such admission. 

With respect to the legality of the votes taken 
on Monday morning, it has been repeatedly assert¬ 
ed, that the true question is. Has a Sheriff the 
right to open the polls before ten o’clock? Upon 
this hinge, it is insisted, the whole case turns. In 
this matter, I am compelled to dissent, altogether, 
from the gentlemen. Whether a Sheriff could, 
or could not, under ordinary circumstances, all 
the officers appointed by the County Court being 






8 


present, proceed to open the polls before ten 
o’clock, is not the true issue. In fact, it has little 
or nothing to do with the point under considera¬ 
tion. Tlie true issue is, can a Sheriff, before ten 
o’clock, which is the usual hour of opening the 
polls throughout the State of Kentucky, declare 
the office of a judge vacant, and appoint whom he 
pleases to fill the vacancy, when the judge him¬ 
self is on his way to the place of holding the elec¬ 
tion—is in sight of the town, if you please—and 
actually arrives there before ten o’clock? Or, in 
other words, can the Sheriff create a vacancy, by 
his own arbitrary will, where there is none, either 
in fact or in law, and thereby thrust from the bench 
the judge appointed by the court, filling the place 
with an individual of his own selection? Can this 
judge occupy the seat for an hour, until the usual 
time of opening the polls, and then give place to 
the true judge? and shall the acts of the former be 
deemed legal, and rcceiare our approbation? The 
constitution says, that the election shall be held on 
the first JVIonday in August; the law provides that 
the County Court shall appoint two judges, and 
a clerk of the election, and that the Sheriff shall 
open the polls by ten o’clock. If the judges or 
clerk do not attend, the Sheriff is required to fill 
the vacancy. They are to each take an oath 
of office, and to attend to receiving the votes, until 
the election is completed, and a fair statement made 
of the whole amount thereof. The practice, under 
this law in Garrard, is proven to be, to open the 
polls at 10 o’clock; and this construction, it is be¬ 
lieved, has been given to the law throughout the 
who^e State. But, as the phrase **by ten 
o’clock” is used, the gentlemen contend that 
the Sheriff may open the polls at any time be¬ 
tween midnight and that hour. Here they are 
sti’ict constructionists. They would hold us to the 
very letter itself. Upon another branch of the sub¬ 
ject, we were told by the gentleman from Penn¬ 
sylvania, (Mr. Banks,) that the powers of the 
Sheriff must not be enlarged “ by construction.” 
Let us apply that principle here. Let us look a 
little to the consequences that flow legitimately 
from the argument. It will not be denied, that 
the law, in requiring the county Court to select 
two of their own body to act as judges of the 
election, intended, that under all ordinary circum¬ 
stances, the judges who presided should be indi¬ 
viduals selected by that respectable body of men; 
and that it was only in the event of certain contin¬ 
gencies, that the Sheriff should be permitted to se¬ 
lect either Judges or Clerk. The practice, under 
the law, has been in entire conformity to this sup¬ 
position. But if, as gentlemen contend, the Sheriff 
can, at any time before the hour of ten, open the 
polls, and fill all the vacancies that exist at the time 
of opening them; and if the mere fact ofthe Judges 
and Clerk not being present at the moment, con¬ 
stitutes a vacancy, then, is the whole object of the 
law defeated. The Sheriff may, at every elec¬ 
tion, supersede the officers appointed by the 
Court, by his own friends, or the friends and 
creatures of one of the candidates. He can attend 
at any moment after midnight—open the polls, and 
having the persons he wishes on the spot, proceed 
to fill all the offices! It is said they may resign. 
True. But suppose they do not choose to resign. 


as they would not in party times, or when a parti¬ 
cular object was to be accomplished by their ap¬ 
pointment. The Judges and Clerk appointed in 
pursuance of the law, might attend at the usual 
hour, and demand their seats; but it would be 
mere mockery to do so. The individuals selected 
by the Sheriff, and who probably would never 
have been chosen for any purpose by the Court, 
will remain upon the bench, and control and 
manage the people of the county, in open defiance 
of their will, and of the plain and palpable mean¬ 
ing of the law. Sir, this doctrine constitutes the 
Sheriff of the county a monarch! It clothes him 
with the most alarming powers; powers that were 
never designed to be given him; and which can 
only be claimed by a most labored and far-fetched 
construction ofthe law. When gentlemen talk of 
absurd consequences, resulting from the construc¬ 
tion which the committee have given to the statute, 
it would be well for them to follow out the conse¬ 
quences of their own principles. 

For what do we contend? Why, that as ten 
o’clock is the usual hour of opening the polls—the 
only time named in the law; and as the court have 
the power to appoint the judges and clerk, and 
the sheriff only a power to fill vacancies. The 
manifest intention of all this is, that the sheriff 
shall wait until ten before he declares the offices 
vacant, and proceeds to fill them by new appoint¬ 
ments. This is no labored construction. It is a 
fair, a reasonable construction. It establishes a 
safe rule, that will protect the rights of all con¬ 
cerned. It gi\ es effect to all the provisions of the 
law, and so construes the various clauses, so that 
the whole statute may stand unimpaired. 

It is amusing, sir, to hear the gentlemen who 
call this a labored construction, and who insist so 
strenuously upon our adherence to the language— 
to the plain letter of the law, in this instance, when 
they arrive at another point, and attempt to show 
that the presence of the sheriff is not necessary 
during the progress of the election. They admit 
that the law says the votes shall be given in the 
presence of the judges and the sheriff, and yet 
contend that the sheriff need not be present; that 
he may leave the town and call some one of the 
neighbors to cry the votes and discharge the va¬ 
rious duties of the presiding officer. He may ride 
through the county electioneering for one of the 
candidates, or employ himself in any manner he 
pleases; and yet, all that is done in his absence is 
valid and deserves our unqualified sanction. So 
bold did this position appear to the gentleman 
from Kentucky (Mr. Hardin) who last addressed 
the House, that he endeavored to avoid it by a 
more circuitous route. He contended that Mr. 
Spillman, who cried votes in the absence of the 
sheriff, was a deputy, and his acts were therefore 
legal. 

Let us examine this ground. How was he ap¬ 
pointed a deputy ? Had he a warrant, or certifi¬ 
cate of appointment? None, whatever. Was he 
sworn? Not at all; yet the law requires that he 
should be. Was he requested to do an official 
act? No. The gentleman informs us, that the 
law does not require votes to be cried; that it is 
only a practice that has grown up in the State. 
The only act which the Sheriff asked Spill- 




9 


man to perform, was, to cry the votes. Yet the 
gentleman says that he was a deputy. No certifi¬ 
cate—no oath—not even required to do an official 
act; and yet a deputy Sheriff of Garrard county! 
Sir, the gentleman complained of the “sophistical 
reasoning” of those who differed with him in opi¬ 
nion; but if this be sound reasoning, then I confess 
that all the rules which I have been taught, for 
the purpose of distinguishing true from false rea¬ 
soning, are utterly delusive and erroneous. 

Mr. Speaker, there is but one safe ground to 
occupy, in relation to this whole subject. The 
constitution and laws of society have prescribed 
cerfain rules, by which elections shall be conduct¬ 
ed. To these we must look, in every contest: by 
these we must abide, in all our decisions. An 
election which has not been held in accordance 
with them, is absolutely void. 

What is the object of these rules? Is it not to 
secure to us a good Government^ to give order, 
stability, and security, to the body politic? It is, 
sir. Those who framed them, intended to pro¬ 
tect us, equally, from the iron tyranny of a despot, 
and from the uncertain, capricious sway of an un¬ 
controllable mob. This can never be accomplish¬ 
ed, but by adhering to the rules, as they have been 
established. Yet gentlemen contend, that the 
People are not bound to know the rules; they are 
not required to know the law! Is not this a 
strange doctrine, to be advocated by legal gentle¬ 
men; to be advocated by lawyers of long practice, 
and of high eminence in their profession? Sir, 
one of the first lessons taught in the legal science 
—one of the fundamental principles upon which 
all judicial proceedings are predicated—is, that 
every man is bound to know the law. What 
would be thought of an individual, arraigned in 
Court for an offence, who should plead that he did 
not know the law, and was not bound to know it? 
What would be said to a party, in a civil case, who 
would attempt to set up such a defence? They 
would both be silenced by the Court; and that, 
too, with the approbation of every lawyer in the 
country. 

Again, we are told, that we ought to decide this 
question upon principles of equity; that we must 
not be technical; but must be guided by the jus¬ 
tice of the case. I have, more than once, heard 
very much such arguments in Court. An advo¬ 
cate, finding all the principles of law against him, 
appeals to what he calk equity and justice. He 
implores the court and jury to remember that it is 
a hard case^ and that it is their duty to do what is 
rightf between the parties. Do we not all know, 
to what this argument leads? It has been well re¬ 
marked by an eminent writer, that if even a court 
of equity should disregard certain general rules 
and principles, that all our rights would depend 
upon the arbitrary will of the court; upon the no¬ 
tions entertained by the judge of what was right 
and what was wrong. One judge would decide a 
cause one way, and another would decide a simi¬ 
lar cause differently. We should have no rule 
but the dictates of the chancellor’s conscience, or 
the length of his foot! The laws furnish a certain 
criterion by which all our rights can be determin¬ 
ed. Disregard these and you set up in their 
place, the opinions, notions, and feelings of the 


court and Jury, in every case that comes before 
them. Are gentlemen prepared for this? Are 
they willing to set aside the election laws of the 
States, and be governed by the opinions of the 
honorable members of this House? For my part 
1 can never sanction such a state of things; nor 
can I countenance principles that must inevitably 
lead to such a revolution. In the language of the 
Pittsburgh memorial, read here the other day, I 
go “for the supremacy of the laws and constitution 
of my country.” 

Nearly allied to the argument which I have just 
considered, is another one equally fallacious, when 
applied to this election. The gentleman from 
Pennsylvania, (Mr. Banks,) insists that Grant was 
acting under color of authority y and that his acts 
were therefore good; that he sat in the place of a 
judge; that he had all the emblems of authority 
about him, and the people were not bound to in¬ 
quire whether he was legally authorized to receive 
votes or not. Apply this doctrine to the practical 
concerns of life. Suppose a person comes to your 
house claiming to be the tax gatherer of the coun¬ 
ty. He has a book containing the names of your¬ 
self and neighbors; with an amoujit of chattel and 
land tax against each one. He is a decent, gen¬ 
tlemanly looking personage, and you have no 
reason to doubt his being fully authorized to re¬ 
ceive your taxes. You pay him and take his re¬ 
ceipt. But, to your utter astonishment, on the 
next day, the proper officer,appointed by the gov¬ 
ernment to collect the revenue, appears at your 
door and demands the payment of your quota of 
the public levy! Will your receipt protect you? 
Will it do to talk about the stranger’s having the 
color of authority or of office ? Why we all know 
it would not. Suppose again, that there is a judg¬ 
ment against you in court, for a sum of money. 
An individual professing to be a sheriff or deputy 
sheriff, but who is not so, calls upon you and de¬ 
mands payment of the amount. You discharge 
the debt and lake a receipt; will it protect you 
when the true officer appears? Sir, it would be 
worse than idle to talk to him about the color of 
office or authority. The money would have to be 
paid again. 

The answer t® all that has been advanced upon 
this point, is, that there is a wide difference be¬ 
tween acts that are void, and those that are only 
voidable. Every lawyer is aware of this. When 
a man undertakes to ffischarge the duties of a pub¬ 
lic officer,by virtue of an appointment, or autho¬ 
rity, that is merely defective, or informal in some 
particular, but which has been conferred by the 
proper tribunal, then his acts are not to preju¬ 
dice third persons. Individuals are allowed to 
recognise him as a public officer, without inquir¬ 
ing into all the merits of his title to such distinc¬ 
tion. As for instance, if an office becomes vacant 
and the persons authorized to fill the vacancy, 
make an appointment, which is not made, howev¬ 
er, in exact confoi mity to law—which is defective 
in its form, here individuals might be protected 
by his acts. But, when an appointment is wholly 
nugatory in its inception; when it is void in the 
first instance—as in the case of this judge; when 
it is made to fill a vacancy, that has not happened 
—that does not exist —then, all his acts are total- 




10 


ly void; they neither protect himself, nor any one 
else. They can neither be recog'nised in a Court 
of Justice, nor before any other tribunal that pre¬ 
tends to be governed by law. 

Throughout this discussion, as well as in the 
report of the minority, there is one point to which 
our attention is earnestly called. It is said, sir, 
that the chief, if not the only, inquiry should be, 
were the persons who voted, properly qualified to 
do so, according to the constitution? If so, it is 
but of little consequence who presided. To this 
proposition we are constantly referred. Of its 
peculiarly important character, we are perpetual¬ 
ly reminded. It seems, from the arguments of 
honorable members, to possess a paramount inte¬ 
rest over every other consideration that has been 
named. They present it in every variety of 
shape and surface. It is decorated with all the 
ornaments that the most fertile imagination can 
be tow. They cling to it with the violence of a 
shipwrecked mariner, who feels that his only 
hope is the plank in his grasp, and that some more 
powerful arm is tearing even that plank from his 
possession. We are urged to concede the point, 
with a degree of earnestness and eloquence that 
require the utmost strength and resolution to re¬ 
sist the overpowering influence. 

For one, sir, I beg to be excused. The posi¬ 
tion itself is wholly defenceless; and I cannot but 
believe, that gentlemen will find it so, upon a 
closer examination. What is an election? One 
gentleman (Mr. Marshall^ informed us that it was 
an expression of the choice of a majority of the 
voters. This is a sound definition, so far as it 
goes. It is the truth; but it is not the whole 
truth. An election is an expression of the will 
of a majority of the voters, manifested, according 
to the provisions of the constitution and laws. Un¬ 
less their choice is made known, in the mode pre¬ 
scribed by these, the act is void— it is no election; 
it binds no one; it confers no privilege whatever. 
What do these instruments require? They not 
only define, particularly, who may vote, but they 
point out, specifically, the time, place, and man¬ 
ner of voting. They not only declare who may 
give votes, but they are equally precise in declar¬ 
ing who shall receive the votes so given. There 
must be both givehs and receivers. We can no 
more have an election without some tribunal to 
receive and record the votes, than we can without 
some person to give the votes, which the law re¬ 
quires to be recorded. Is there a doubt about 
this? Is not one as necessary, both by the law, 
and from the very nature of things, as the other? 
Does net the truth of this proposition strike every 
mind with irresistible force? It does, sir. And 
you might as well wage war with the tempest in 
its mad career, as undertake to combat a princi¬ 
ple so far beyond the reach of refutation. 

By an election, a part of the community ap¬ 
point public agents, or servants, whose acts are 
obligatory upon all. Yes, sir, I repeat it, they 
appoint public servants; for democrats as we are; 
republicans as we may profess to be, or 
as we may have recently become—we are too 
apt t@ forget “the rock from which we have 
been hewn;” and it is well for us to be remind¬ 
ed, that we are but servants to the great mass 


of our fellow citizens—bound by their will, and 
responsible to them, for all our conduct. But, 
the acts of the agent are not, and ought not to he, 
binding upon all —unless made according to law. 
A more obvious truism could scarcely be present¬ 
ed to the human understanding. Yet the mi¬ 
nority of the committee boldly avow the doctrine, 
and are sustained by the arguments advanced tipon 
this floor, that if persons, having no authority 
whatever, should drag the judges from the bench, 
and usurp the authority to preside over the elec¬ 
tion—their acts would be legal—the election would 
be valid—and the candidate having a majority of 
votes, thus bestowed, would be entitled to a seat 
in this House! I confess, sir, that I am startled, 
when I hear such principles avowed in the House 
of Representatives of the United States. I am 
the more amazed, when these disorganizing theo¬ 
ries are put forth by honorable members, who 
have been so loud and so vehement against the 
President and the Secretary of the Treasury, for 
alleged usurpations and violations of law, with re¬ 
gard to the United States Bank and the public 
revenues of the country. Why have they so 
suddenly become the advocates of “usurpers?” 
Is not usurpation the same in every department 
of the Government? Sir, I am against it, let it 
come in what shape, or from what quarter it may. 
I oppose it, in judges of an election—I oppose it 
in this House—I denounce it in the Senate—and 
convince me, that the Executive has been guilty 
of it, and I will condemn him, as freely arid cor¬ 
dially, as I now support him. The gentleman 
from Kentucky (Mr. Marshall) insisted, that the 
Sheriff could make a temporary appointment of 
Judges. This he inferred from the facts, that the 
judges and clerk hold their offices for a year; and 
as there might be more than one election during 
that period, and they might be absent from one 
and present at the others—it would be necessary 
for the Sheriff to appoint officers to serve during 
their absence. Suppose this to be so, does it 
legalize GranPs appointment? Clearly not. For 
he was appointed before the vacancy occurred; and 
he left the Bench at ten o’clock;—when the law 
declares that the judges and clerk appointed, 
shall attend to receiving votes, until the election is 
completed, and shall then certify the same. Here, 
the judge leaves the Bench before the elec¬ 
tion is closed, he does not count the votes taken, 
whilst he was presiding; and he makes no certifi¬ 
cate at all, of what was done during the time he 
officiated. Mr. Wheeler, who succeeded him, 
could not certify to what was done, before he 
came to town; and so far as his certificate purports 
to cover Grant’s doings, it is a nullity. If, there¬ 
fore, the Sheriff could appoint a judge to preside 
during one election in the year, it by no means 
follows, that he can appoint one to officiate for 
an hour or two; and then absent himself without 
leaving behind him the slightest traces of his offi¬ 
cial existence. 

We have heard, sir, that Mr. Grant was sworn 
as a judge. By reference to the depositions, it 
will be seen that this is very doubtful. The she¬ 
riff testifies that he believes Mr. Grant was sworn, 
and that 11. McKee, Esq. administered the oath. 
But in another part of his deposition he states that 





11 


he appointed Grant, because there was no other 
justice in town. How then could Esquire McKee 
be there to swear the persons appointed? It is 
extremely probable that the sheriff is mistaken, 
and that they were not sworn at all. 

Somewhat akin to this is another argument of a 
gentleman from Kentucky, (Mr. Hardin,) who, in 
order to connect and legalize the acts of Grant and 
Wheeler, contended that Grant resigned at ten 
o’clock! Yes, sir, the sheriff appointed Grant at 
nine o’clock, to fill the vacancy occasioned by the 
absence of Wheeler; Grant took his seat; he had 
no written appointment; there is no record or en¬ 
try made of it; it is uncertain whether he was 
even sworn. He remains at the bench till ten, 
the usual hour of opening the polls, when Mr. 
Wheeler arrives and takes Grant’s place; or, ac¬ 
cording to the gentleman. Grant resigns,*’ and, 
I suppose, Wheeler was appointed to fill the va¬ 
cancy occasioned by Grant’s resignation. No entry 
is made of the resignation; none of the new ap¬ 
pointment of Wheeler. Yet we are told that this 
is all legal; and that too, by an honorable mem¬ 
ber who charg-esothers with resorting to “sophis¬ 
tical” reasoning and “cob-web technicalities.” 
Such arguments as these may be very cogent and 
conclusive. To me, however, they appear but 
bubbles, floating upon the surface of the stream. 
Gilded by the sunbeams, they reflect all the gaudy 
coloring of the rainbow; touched by the spear of 
truth, they burst without either noise or resistance. 

Having shown, I trust, that the votes taken on 
Monday before ten o’clock, whilst Moses Grant 
acted as judge, were not received according to 
law; that the whole procedure was illegal and 
void; and that the votes so taken must be rejected, 
I shall now ask the attention of the House, whilst I 
submit a few observations relative to the votes ta¬ 
ken in the absence of the sheriff on Tuesday. 
These, I am satisfied, are illegal also, and ought 
not to be counted, in deciding upon the claims of 
the candidates. 

The sheriff' in Kentucky possesses very impor¬ 
tant powers with respect to the elections; but they 
are not quite so extensive as the gentlemen have 
supposed. He is required by law to open the 
polls; he presides and keeps order; he scrutinizes 
the qualifications of the electors; unless the indivi¬ 
dual is known to him, or to one of the judges, an 
oath is administeiysd by the cleik as to hU 
right of voting. Ifthe judges are divided in opi¬ 
nion, the sheriffgives the casting voice, and settles 
the right of the voter. 

When the vote is given, he cries it; when the 
election is over, he closes the polls, takes charge 
of the poll books, and carries them to the place of 
meeting; where all the Sheriffs in the district con¬ 
vene, to compare and add the whole number of 
votes, and give a certificate to the candidate elec¬ 
ted. In addition to this, the law expressly re¬ 
quires, that the votes shall be given in the pre¬ 
sence of the Judges and the Shehiff. One would 
suppose that language could not well be made 
plainer, and that there could be but one opinion 
about the true construction of this law. Yet, 
strange to tell, our opinions differ as widely as the 
poles. The same gentlemen who are for confer¬ 
ring such alarming powers upon this officer, wi h 


regard to opening the polls, filling vacancies, &c. 
would have us believe, upon this branch of the 
subject, that his powers and duties are almost no¬ 
minal. They inform us that he merely keeps or¬ 
der, that he only cries the votes by custom, that 
he gives all the information to the Judges which 
he can, and has no voice, except as a witness, in 
controlling the rights of the electors! In attempt¬ 
ing to explain away the law, and make it wholly 
inoperative, so far as it requires the Sheriff to be 
present when the votes are given, the gentlemen 
have insisted, that he is not a judge of the election; 
that he does not decide upon the rights of the vot¬ 
ers, (although the proof is exactly the reverse in 
this case,) and that, therefore, his absence is an 
immaterial circumstance. 

To establish this position, much stress has been 
laid upon the fact, that the judges selected by the 
county Court are compelled to take an oath of of¬ 
fice, as judges of the election; hut \he Sheriff is not. 
They are justices of the peace, selected from 
among the members of the county Court; they 
have, of course, taken an oath of office, before 
they are called upon to act as judges of the election. 
Yet, the law requires them to be sworn again. 
So of the Sheriff; he is a high officer, well 
known to the law. He, too, has taken an oath of 
office. But when he is called upon to preside at 
the election, he is not required to be sworn as a 
judge. Here the honorable gentlemen seemed to 
congratulate themselves upon the discovery of 
what they are pleased to call “ a marked distinc¬ 
tion” between the Sheriff and the judges. They 
pause at this point, and inquire, exultingly, why 
this “marked distinction” between the provisions 
of the law relating to these respective officers, if 
it were intended that he should perform, in any 
respect, the functions of a judge? Here, they 
appear to think that the committee is completely 
hemmed up, without the possibility of escape. 

It is strange, how we often delude ourselves 
and others, by looking only at one side of a ques¬ 
tion, or by deciding upon it without taking time 
for reflection. The difficulty which gentlemen 
have conjured up, is readily removed. It is a 
problem that may be solved with the utmost facili¬ 
ty. I will tell the honorable members why this 
distinction is made. The Sheriff holds his office 
for two years; it is a part of his official duty to 
preside at every election which is held in the coun¬ 
ty during that period. Hence, when he takes an 
oath of office, the obligation to preside at elec¬ 
tions is included in the oath; just as much so as 
any fcther part of his official duty. Nothing is 
clearer than this. 

But it is not so with the justices. A man may 
be a justice of the peace for fifty years, and never 
act as a judge of the election. The county Court 
is composed of all the justices in the county, and 
meets monthly. At their annual meeting, pre¬ 
ceding the August election, they are to select two 
members from their own body, to act as judges at 
the election. They may select the same two per¬ 
sons, year after year, if they choose, for a quarter 
of a century. Where there are from twenty to a 
hundred justices in the county, many of them may 
never act as judges of an election, during their 
lives. Still, they are going on discharging all 




their duties as justices of the peace, both as sin¬ 
gle magistrates, and as members of the county 
court. To ensure the faithful performance of 
these, an oath of office is administered to them 
wlien they are first commissioned. But should 
they, in the course of their lives, be appointed by 
the Court as judges of the election, which is a 
separate and distinct office^ then they are sworn 
faithfully to discharge the duties appertaining' to 
their new appointment. Is not this a solution of 
the problem^ It appears so to me; and 1 hope 
the gentlemen are satisfactorily answered. 

The law peremptorily requires the votes to be 
given in the presence of the Sheriff. The fact is 
in proof, that they were not so given. He was 
absent from the place of holding the election dur¬ 
ing the greater part of the d.ay, and at the time 
these votes were given, he had no deputy there. 
The evidence upon these points is unquestionable; 
unless we adopt the theory of the gentleman from 
Kentucky (Mr. Hardin,) that Spillman became a 
deputy by a bare request, that he would cry the 
votes given. I have already expressed my opi¬ 
nion with regard to this proposition, and do not 
think it possible to add any thing to the argument 
of my friend from Ceorgia (Mr. Jones) upon this 
subject. He totally demolished the whole super¬ 
structure. 

If then, the law, and (he facts are as I have sta¬ 
ted them to be, how can any one pretend that 
these votes are valid and ought to be counted up¬ 
on the present occasion? Will any one insist, in 
this instance also, that it is a hard case; that the 
Sheriff was necessarily absent; that this is a mere 
formality ? Sir, we must either conduct the elec¬ 
tion according to law, or not. If we can dispense 
with the Sheriff, we can, upon the same princi¬ 
ple excuse one of the judges from attendance; 
if we can allow one to go, we can spare both, 
and the clerk with them! Where will it end? 
That is the question. Can you place bounds to 
this principle ? If so, where are they to be found? 
The moment we abandon the law, w'c are afloat 
upon the broad ocean of uncertainty, where we 
shall be drifted by the wind and tide among rocks 
and whirlpools, where nothing but the arm of 
Omnipotence can save us from destruction. 

I cannot see how any friend of State rights can 
think of adopting the doctrines contended for up¬ 
on the other side. The States have the power 
to regulate the time, place, and manner, of holding 
the elections. It is expressly recognised in the 
federal constitution, as I have already observed. 
The State of Kentucky, as well as all others in the 
Union, has exercised this right, and fixed the 
MANNER of holding the election. Without a sub¬ 
stantial conformity to the rule she has adopted, 
the election is void—just so far as it is contrary to 
the law. The cases of Jackson and Wayne, and 
Scott and Easton, both decided in this House, 
have settled that principle. To disregard the law 
of the State and confirm an election merely upon 
our own ideas of justice, would be a most flagrant 
act of usurpation. We may talk of State rights 
as much as we please; we may be friendly to the 
doetrine whilst it is our interest to be so; we may 
deprecate, in the most vehement and eloquent 
language, the tendency of this federal govern¬ 


ment to absorb all the reserved rights of the Peo¬ 
ple and of the States; but if we disregard the 
laws of the States, enacted upon a subject ex¬ 
pressly reserved for their legislation, and substi¬ 
tute our own will for their solemn statutes—I 
boldly assert, that we shall have established a 
principle which will destroy the last vestge of liber¬ 
ty, reserved to the members of this confederacy. 
Such a principle carried out, mtist lead to the eon- 
centration of all power in the General Govern¬ 
ment. It would overleap the barriers erected be¬ 
tween the authority of the central government, 
and the rights and powers of the several States of 
this Union—and would, in the end, lead to a ty¬ 
ranny as odious as tke most absolute despotism. 

Having shown, I think, that the twenty-five 
votes given at Lancaster on Monday, whilst M. 
Grant, Esq. was presiding, and the forty-five 
given on Tuesday, at the same place, in the ab¬ 
sence of the Sheriff, ought not to be received, I 
will very briefly notice some other points that 
have been touched in this discussion. 

The gentleman last up, (Mr. Hardin,) spoke of 
the students at Danville College, whose votes 
have been stricken from the polls. The constitu¬ 
tion of Kentucky gives tlae right of suffrage to in¬ 
dividuals, who reside in the State two years, or in 
the county one year, and requires them to vote in 
the county or precinct where they actually reside 
at tiie time of the election. The majority of the 
committee believed, that the constitution did not 
intend that residence^ alonCt in the most unlimited 
sense of that word, should bestow the right of suf¬ 
frage. If this were so, aliens who might reside a 
year in any one county, would thereby entitle 
themselves to this high immunity. We believed 
that tliis clause deserved a fair and reasonable con¬ 
struction, and that the residence intended, was a 
permanent residence for the time—an actual home 
or domicil in the State. In this view of the ques¬ 
tion, we found ourselves sustained by a decision of 
the Senate of that Commonwealth, in a contested 
election between Williams and Mason. Upon 
that occasion, it was determined that a citizen of 
Kentucky, who had been out of the State for five 
years, had not lost the right of suffrage. There 
was no proof that he left the State permanently to 
reside elsewhere. This was undoubtedly a cor¬ 
rect decision. In ascertaining the home of an 
individual, almost the whole inquiry turns upon 
the intention of the voter. . Did he leave the State 
with an intention not to return? Was he absent 
on a visit, or on business, or did he abandon the 
country i* 

Now, we have only to reverse Ibis rule, that it 
may aid us in deciding the rights of students at a 
college, or transient persons of any description. 
What is their business in Danville, having come 
there from other States and counties, and remain¬ 
ed in that place for two or three years? Is it to 
become citizens of that county, or of the State? Is 
it to reside, permanently^ and to amalgamate with 
the people there, or is it to obtain an education, 
and then leave the place? Are they in the town 
as citizens, having selected it as a home, or are 
they only there for a temporary purpose, the time 
of their stay being necessarily limited*' These 
were questions which the committee had to consi- 




13 


der for themselves; and the conclusion at which 
they arrived, was, that the residence of a young’ 
man at school or college, for the sole purpose of 
pursuing his studies, is notswc^ a residence as con¬ 
fers the right of suffrage. 

In this opinion, they were not only confirmed by 
the auihorities which they consulted, but by the 
general understanding of the community. No fa¬ 
ther believes when he sends his son from Ohio to 
Kentucky to obtain an education, that by such re¬ 
moval the son ceases to be an Ohioan, and becomes 
a citizen of Kentucky. Does the son expect, that 
when he returns to his former residence, he will 
be treated as a foreigner, and compelled to u'.ider- 
go a quarantine in his native county, before he 
can exercise the rights of citizenship ? Surely, 
this is not the doctrine which prevails among the 
citizens of the several States, who send their sons 
from home to be’ educated. Yet to such results 
must we come, if we permit students to exercise 
the right of suffrage, merely y on the ground of their 
residence at college. It will hardly be pretended 
that they possess this right in two or three States 
at the same time. 

Whilst upon this subject, I will remark, that 
we decided two cases with great facility and una¬ 
nimity. They were the cases of Wiley and 
Highee. The former had been a student at Dan¬ 
ville, for several years; he returned home to Gar¬ 
rard county just before the election, voted, and 
came back to the College in Mercer, soon after 
the election, to pursue his studies. The other 
was a student at the law school in Lexington, 
Fayette county. He came down to his father’s, 
in Jessamine, a few days before the election, voted, 
and returned to Lexington. In both cases, the 
committee decided these votes to be good; and as 
the gentleman from Pennsylvania said of the ap¬ 
pointment of Grant, no one complained of our de¬ 
cision. They both voted for Mr. Letcher. 

Apply the same principle to the other students 
at Danville, who came there from distant States 
and counties, and their votes must be excluded. 
It was upon this principle the committee decided; 
and in the opinion of a majority, ten votes were 
necessarily stricken from the polls as illegal. 

Another decision of the majority has been the 
subject of animadversion. I allude to the votes 
which are alleged to have been improperly entered 
upon the poll book; or to have been omitted by 
the Clerk entirely. There are several of these on 
both sides; and proof was taken by the parties to 
establish the facts. 

Under all the circumstances, the committee 
deemed it safer to rely upon the poll books—the 
records made by respectable men under oath, than 
to permit individuals to come forward, and change 
the whole face of the poll book and the result of 
the election, by swearing that they voted, and 
their names have not been recorded—or that they 
voted for a different candidate from the one in 
whose favor their names are recorded. We were 
not prepared to say, that a case might not be pre¬ 
sented, in which it would be proper to alter the 
record by parol testimony; but we were clearly of 
the opinion, that this was not such a case. No 
change, therefore, was made. 

The committee were strengthened in their posi¬ 


tion, by the decision of the Senate of Kentucky, in 
the case before referred to, of Williams and Mason. 
Having such respectable authority, in aid of the 
reasons which arise from the nature of the ques¬ 
tion, and which will suggest themselves to the 
mind of every gentleman, we determined to leave 
the poll books as we found them. 

Mr. Speaker, the case of Wilkes and Luttrell has 
been introduced here, during this debate, and for 
what purpose, I know not. Is it believed by the 
gentlemen to be an analogous case^ In what does 
the analogy consist? Do they fear that this case 
will be improperly decided, as that unquestionably 
was? If it should be, I ardently hope sir, that some 
modern Junius may be found, who will rouse the 
public attention to the subject, and never lay down 
his pen, until he has the satisfaction to see his 
opinions universally adopted as a standard, and the 
erroneous judgment of this House expunged from 
our journals. 

It is some time since I read the history of the 
case under consideration. According to my re¬ 
collection of it, Wilkes was expelled by a vote of 
the House of Commons The People re-elected 
him, by a very large majority over his competitor. 
Col. Luttrell. He appeared at the door of the 
House of Commons, and demanded his seat; but 
the House determined, that his previotis expulsion 
disqualijied him from holding a seat; and that the 
votes given to him were void. Upon these princi¬ 
ples they decided, and gave the seat to his 
competitor. They did wrong in this. Such 
a disqualification as they recognised, arising 
from expulsion, was wholly unknown to the con¬ 
stitution and laws of England. Even Judge 
Blackstone, who had written expressly upon this 
subject, and had not mentioned any such disquali¬ 
fication, was induced to come out in defence of the 
decision of the House. But with all his ability 
and learning, he was unable to sustain it, and those 
who took the other side of the question had no 
difficulty in holding him up to the public gaze, as 
a fit subject for the ridicule of all, who ranged 
themselves under the banner of constitutional 
freedom. 

How do the principles of that case apply here^ 
Who sets up new rules in this controversy ? Do 
we? No, sir, we ask for no innovation. We want 
no new test. We do not complain of the criteri¬ 
on, by which such cases have been formerly de¬ 
termined. On the contrary, it is the very thing 
we desire. We call upon the House to conform 
to it. We deprecate all rules, except those which 
are derived from the constitution and laws of our 
country. 

One word more, sir, and I am done. I have now 
given my views of this subject, with some of the 
reasons that induce me to entertain them. It is 
for the House to decide, who is right and who is 
wrong. With that decision I shall content myself, 
let it be what it may; believing that I have dis¬ 
charged my duty, and that other gentlemen will 
discharge theirs, according to the dictates of their 
own understandings. But, I shall be pardoned 
for paying, that I do most solemnly believe, if the 
principles advanced by the majority of the com¬ 
mittee are adopted, then, we sanction a rule, that 
will secure to us all the privileges guarantied by 




14 


the charters of American liberty. On the contra 
ry, if the doctrines maintained by the gentleman 
who oppose us, shall be ratified by a decision of 
this House, and carried out to their legitimate 
consequences, we adopt a rule of the most perni¬ 
cious character; a principle, which, like a slow 
and deadly poison, will infuse its baleful influence 


through all our political Institutions; until the 
proud and’ glorious fabric, erected by the labors, 
and cemented by the blood, of a raliant ancestry, 
will crumble into dust in the presence of their de¬ 
scendants, who will have lost the power to pre¬ 
serve an inheritance of such inestimable value. 


j 




. '.ii , -I 






:% '••r. ■■ 'i;!.’ ,. 






3 





vv ■'•*:. A /' 

' . . 'A 


,. ".-/ '. y w.- ? 


» . 


> • ** 




e 


■' •■ f .f •. / ''*. •'».-. ,1- _ ' 'yjj I :••• ,-. «•' •« ' ■*■ ■ ” . .. < 

'iff''''."Vi? ’ ' ■ ■ ■ / ■ • ■ i'■" '.' ' ■ .,’ ''"' '-r’ . ■ ■';, 

■ .^ •/. ; - ♦ _.• • . '*.L _ . ■: . ' ■ -v.T.- •'. . a". I, 


C' 

WF/ v •.., ■• '„«•/ ’, , 



V-# 

< 

'U 




{-'' \ 


vv^ 

«« 


. *^ 1 * 


» V 



'"' 'v 

» .*4^ 


'> ■■ 


'Vt 

V y 


. r 



- -V.f;, 


i 'V' " 

ft ■ 

« 

‘ 1 »M 

>, 7N^ 




’ «^ i' 

k • *, 

:''7'. 

mi 

V f 

. 'W. 


• f 

4 

A 




‘?4. 


«-M 



_IB 1 ': ■' ■’■ .'fV;../ .;i 


^/V *- 


• 4 . 


/:. 


y /• 


> ■’ .■ • •• 4 . ' \ ‘ ' AV'‘> r 

■ . ... . ^;; - ■ -■ 


-•' 

‘ i •■' 


"f 


I. V 


»■ ». 


'.■•'t. •> 


, ... - . r. ,, /.>■.■', - > I.'.. \\,^.. 

. .•■r^' ^ Vi: .■'• ■ v^ ■••■i''.' 


.. j .,' ' - ,^71 . •* . rt» •- i 

^: r . ' ■ ■ ' ' .• ,' 


i •.■ :• 


I t 


. 5 * • 


11 

4 ' >»' 


y ...y.. 


f 

' ■ 'V^ 


I 'Iff. 

■ V , 


t • 


/ 


- ' ' ■ ► ■ ' i ^ i i •> » \ . \ •- 1W>V»ti' . ' r ' S- 

■ . •<• -.■ ■V ■' y.'."’ w.: '-■: 

■.. • /f , ■.?', ■ :'.: .■.Kv;,4.>?##g>- •,. 

. >■ ' . •.' .* I-*.'. . .”. ... ■: K - .‘ ' 

v-ry;'. •■ ■ .;/. ,rv;.^vi^. V- r ■>' Kd'-rr'-fmy: 




y< 

'' '' 
.y .‘j. 


•> ■ ■ /. • , : .-.y' . i' 




J' ^ 


I 


A 


■ ■■■'■ - ■ ■ ■,>;•. ../ft- A:.-^..H ^■' • ’.^ •■' " ■ .. 

-v'-: 7 --^ / V.-v..-' . -t'Vv 

,*■ - ■ ’*■ * v- I* * d V' * . y I . V ♦ V : • . .r*A . ■ f. 




f 

f * ^ 




7 • '«:'.V !■ 


'^v :.- ■ ■ ■ » 


'• *\' 

K 


t / „ •» 

' 1 * 


> ff >' 4 ^■ 


• s • '• j r 


Hi- .r/' 4 -,;. ’ -yl-jf« 




•*" • ' XlA' »'.• ’■ »5> ’^/ ' i iVf 'IB 




: i'.. 




} .• 


A. 


/■*' > ' * 

V 

* i' 


%» 






• 1 ' 

■V :«!:;■ 


. .. < * 


* V si 

r'h ' 


;> ■- "y*"' 

-'^:' 5 iv 


V* 

»■ ' V 




iL .r Vi 








V’/ V . 1< 






' /* 


t «■ ^ 
>' . 

- V 



•t^.; 7-''. '^' 7 '. ‘■"‘7 '7' 

V: :v - 

\C%i^ N ''k”* '■' ’» -.«•. .r '*/', N* -»•* • ’ ''I** ' V.tKSC 


'•.' 13 


•.'•...1 i '■‘W 


V 4 . ♦ • 

. *’ 


17 '' : 

■■ r,ir . • ', ■' • • 


/ > 


r-T'.-V' '• V< , y ■ fi' ' fS'.': ■'. ' "■ ■ 7 ' V.'. ''1 ■' ■ ■■ ' “'V'y •'‘ 7,-; '■ ; '7'''''':^ 

b'-i 7''- i-V'.-' ■ ,...y'I .;..:7j;: :.. l4.!v.7.'.;, V V ..• .V .yyx' ■ '■ 7 

V ., .J •• - • ■ . . K '.' -i* r. '’li- I •' .'-t' ' ! •-• Ml. V/,.. •■■*£»- ., 


It lA 


y- ■ 
'iy - 

-• 7-,^’ ..f ■ 




• . 7 v 4 v/ViV: 


irv 




X 






i** 


■:' . ’•■. -?7V;:'yr,. .' ■• .■:'; --v : . Y ■ 'iW' :■ f 

■.V7': v •,' - rx’ ■' ''^7 - q 

-.' '■ '■.;■/•:■. 'ftfe-.--' ■ 7’^ .'^vr-.'"i 7V 7 ' &5 




X. ■ <<■ . . • 

ly. •; ' .' xV'. y |77 


7 ’ ■ 


V’ Uv, 


; 4 . •. ' 


' -«.•■'I* . 

A 1 



:s,r.;7.:’ - Y'. V y rv, '7!' ; '7 •'.' ■ ' ■v 

v:r ^^ 77 :' -I '7 I 

^ 77 vV-:y^&V y:'. 7 :;v 77:;-7 M 7'..'7 




■7’”' - ir '''^i'7"7/trv 

.. 47:;^... A yr,.. i , . y. 



CONGRESS 


0 028 001 695 0 


